On January 13, 2010, we let you know about a new discrimination law affecting companies with 15 or more employees.  The Genetic Information Nondiscrimination Act (GINA) generally prohibits employers from obtaining an employee's genetic information, and the genetic information of the employee's family members.  The genetic information can include both their current medical conditions and their medical histories.  GINA also normally prohibits employers from using such information in making employment decisions. 

On the other hand, there are laws which permit employers to obtain medical information about their employees.  Where an employee requests an accommodation under the Americans with Disabilities Act (ADA), the employer may ask for medical documentation supporting the disability and request.  Something similar is true where an employee requests leave under the Family Medical Leave Act (FMLA): the employer may to ask for documentation of the family member's illness.  In addition, GINA itself permits employers to learn medical information under certain circumstances, such as where employees offer the information in conversation.  For instance, an employer may learn that an employee's father had a stroke where an employee says so, unasked.

On November 9, 2010, the Equal Employment Opportunity Commission (EEOC), the federal administrative body which hears employee discrimination claims, weighed in on GINA, and considered other circumstances under which employers may lawfully come across genetic information.  In this age of social media popularity, an employee who “friends” an employer on Facebook and posts about their health, or the health of their family members, entitles the employer to notice.  What GINA prohibits is an employer conducting internet searches targeted at discovering such information.  For instance, an employer may not perform internet searches aimed at finding out whether an employee has a history of breast cancer, or whether the employee has relatives who do.  That said, the EEOC regulations permit employers to conduct internet searches of publicly available information to find out general information about an employee's background and job history.  

GINA and the EEOC's regulations are very fact specific.  When in doubt about how to implement them, whether they have been violated, or if faced with a claim based on their alleged violation, retain an experienced employment discrimination attorney to provide advice and representation.  The last thing one should do is guess what the law requires.